Muthandi v Muthandi (Environment & Land Case 788 of 2007) [2024] KEELC 5144 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled you cannot switch lawyers after judgment until you pay your previous advocate's taxed fees.
What this practically means
#Executive summary
#Key legal issues
#Mandatory procedure for change of advocates after judgment under Order 9 rule 9
The provision is mandatory: change after judgment may only be effected by court order on notice to all parties or by consent of the outgoing advocate
The court reproduced Order 9 rule 9 and adopted S.K. Tarwadi v Veronica Muehlmann, holding the rule exists to protect advocates from mischievous clients who wait until judgment before sacking their advocate. The Applicant could not come on record without either an order or consent, and consent was withheld because fees were unpaid.
Whether the constitutional right to representation of choice defeats Order 9 rule 9
No; Article 50(2)(b) protects accused persons and does not override procedural rules governing civil proceedings
The court held Order 9 does not impede the right of representation because it merely provides rules for orderliness in civil proceedings. Any change of advocate must comply with the rules; the Applicant was free to choose counsel but first had to settle the taxed costs, whereupon consent would follow.
Distinguishing Miriam Mbeke Nyamasyo v Dishon Odhiambo
That case was distinguishable: there the advocate's costs had not been taxed and the plaintiffs' means to pay were detailed; here the costs were taxed but unpaid, with no showing of capacity or undertaking
The court read Miriam Mbeke Nyamasyo and found it inapplicable because in that matter the advocate-client costs were not yet taxed and the litigants' ability to pay was established. In the present case, a certificate of taxation for Kshs 1,127,817/= existed, yet the Applicant gave no undertaking, so the protective purpose of Order 9 rule 9 applied.
Legal principles established
#- Change of advocates after judgment requires an order of the court on application with notice, or consent of the outgoing advocate; Article 50(2)(b) does not exempt civil litigants from complying with Order 9
- A party seeking to change advocates after judgment without settling the outgoing advocate's taxed fees, and without deposing to capacity to pay or giving an undertaking, will not be granted leave
Court orders
#- 1.The application dated 6th April 2023 is dismissed with costs
- Jurisdiction invoked
- Order 9 Rule 9 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthandi v Muthandi (Environment & Land Case 788 of 2007) [2024] KEELC 5144 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5144/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.